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(A) Any taxpayer (pursuant to this subchapter) who truly believes that he or she has made or permitted an overpayment of his or her liability for any restaurant tax required by this subchapter may apply for refund of said overpayment provided that he or she files an amended return, verified under oath and setting forth in detail the full explanation of the reason of the said claimed overpayment of his or her liability, within one year of the date of said overpayment is made or the date he or she said restaurant tax payment was due, whichever occurs first.
(B) If a refund has been properly claimed according to the provisions of division (A) above, then the city’s Director of Finance shall have the authority to honor and refund any such overpayment actually made above liability upon the restaurant tax required under this subchapter which he or she determines, within his or her sole discretion, was made through honest mistake or inadvertence.
(C) In no event shall any refund be made for any payment upon any restaurant tax unless the refund claim is submitted and filed in strict compliance with the foregoing provisions of this section upon such refund claim forms or amended return forms as hereafter shall be promulgated by the city’s Director of Finance from time to time.
(Prior Code, § 126.10) (Ord. 22-2007, passed 4-23-2007)
(A) (1) If the taxpayer liable for collecting the restaurant tax and filing a return fails to make a return, the city’s Director of Finance shall prepare an estimate of the amount of restaurant taxes due based on the best information available to them. The city’s Director of Finance may make investigations to assist in making the estimate. He or she may consider the volume of business done in the same type of business, and any other relevant maters.
(2) When the city’s Director of Finance estimates the restaurant taxes, the amount of interest and late charges provided by this subchapter shall be added to the taxes due. He or she shall notify the taxpayer of the amount due. Such notification shall be in writing and shall contain a brief description of the method and estimated figures used in arriving at the estimated tax. Any taxpayer may dispute the amount of the estimated tax by filing within 30 days of notification of the estimated taxes a return accompanied by payment of the entire balance due together with the interest and late charges due. Such return shall be processed like any late return, and shall establish the restaurant tax liability of the taxpayer in place of the estimated amount prepared by the city’s Director of Finance.
(3) However, the city’s Director of Finance may later determine that the amount shown in the return is insufficient so there is a deficiency, in the same manner as in the case of other returns.
(B) (1) If the city’s Director of Finance determines, by examining available evidence, that the amount of restaurant taxes paid over by the taxpayer is less than the amount required by this subchapter, he or she shall notify the taxpayer of the deficiency. The city’s Director of Finance may use any of the methods authorized in division (A) above to determine whether a deficiency exists and to determine the amount of such deficiency. He or she shall thereupon notify the taxpayer of the deficiency. Such notice shall be in writing and shall state not only the amount of the deficiency, but also the methods and estimates used in arriving at the amount of the deficiency
(2) If the taxpayer does not object in writing within 30 days of the date of receiving such notice, the taxpayer shall be deemed to have accepted the revised figures for the restaurant tax liability. If the taxpayer does file written objection within the time specified, the taxpayer shall pay the fees, together with penalties and interest, under protest and may thereupon pursue administrative and judicial remedies as provided by this subchapter and by state law to seek a refund.
(C) If the city’s Director of Finance finds that any taxpayer has overpaid, he or she shall notify them of overpayment and shall refund the amount of the overpayment to them.
(D) When the city’s Director of Finance notifies any taxpayer of any estimated amount due, alleged overpayment or refund, he or she shall include in the notice clear instructions on how, when and where the taxpayer may protect or appeal the decision.
(E) (1) If any taxpayer or any person, firm, association or corporation required by this subchapter to pay a restaurant tax or to file a return shall fail to file any return for any month, such failure to file shall constitute a continuing offense against the city and the city’s Director of Finance may proceed to estimate and collect the restaurant taxes at any time.
(2) In all other cases, no increases shall be made in the taxpayer’s restaurant tax liability unless the first notice of such increase is received by the taxpayer within three years of the time the return was first due.
(Prior Code, § 126.11) (Ord. 22-2007, passed 4-23-2007)
OUTDOOR CAFÉS
(A) (1) It shall be unlawful for any person or business to create, establish, operate, maintain or otherwise be engaged in the business of operating an outdoor café on city property in the downtown unless he or she shall hold a permit issued under the terms of this subchapter.
(2) Exceptions. During “special community events” recognized by the city, a listing of which shall be maintained in the office of the Mayor.
(B) Outdoor café encroachment permits shall only be issued to businesses properly licensed by the city, which wish to provide services to its patrons or to locate tables and chairs or other objects directly related to their business of food and refreshment service on the public property immediately adjacent to their business in the downtown area.
(Ord. 19-2015, passed 11-16-2015; Ord. 18-2023, passed 8-21-2023) Penalty, see § 121.99
(A) An application for an outdoor café encroachment permit shall be made to the Department of Planning and Development using an application form prepared by the city. Any such application filed to comply with the provisions of this subchapter shall provide the minimum information required by the application form and shall be signed by both the person or business that operates the food service business to which the permit would apply and the owner of the property in which the business is located if not the same. The application form shall provide the following additional information to the city:
(1) A copy of a valid city business license to operate a business establishment adjacent to the public property which is subject to the outdoor café operation;
(2) Proof of current liability insurance, issued by a company licensed to do business in the commonwealth, insuring the licensee and the city against all claims or liability for damage to property or for bodily injury including death, arising from the result, direct or indirect, of the use of the public property pursuant to the outdoor café encroachment permit, including liquor liability insurance coverage (with a minimum amount of $1,000,000). The insurance shall name the city as an additional insured and shall provide that the policy shall not terminate or be canceled prior to the stated expiration date without a 30-day advance written notice to the city by the insure. The policy shall provide coverage in the minimum amount of $1,000,000; however, the city may require a higher minimum amount at its reasonable discretion;
(3) A drawing of the proposed outdoor café encroachment seating area showing the locations and dimensions of the area, all proposed encroachments and publicly-owned benches, tables and other objects within the area. This information should include, but not be limited to, the width of the public right-of-way, public street name, width of the public sidewalk, information on the type and materials of the improvements (furniture and other fixtures) and other information deemed to be pertinent to review the request; and
(4) Proof of any required ABC license(s), Health Department permits and any/all other applicable permits for the lawful operation of the business.
(B) The applicant shall be notified within 30 days of filing a completed application form with the city of the approval or denial of the permit.
(Ord. 19-2015, passed 11-16-2015)
(A) There shall be no fee charged for an outdoor café encroachment permit.
(B) Any permit issued under the provisions of this subchapter shall be valid from January 1 to December 31 of each calendar year.
(C) Any person who shall operate an outdoor café upon public property without a proper permit as required by this subchapter shall be subject to penalties as established by this subchapter.
(D) Any permit issued under the provisions of this subchapter shall be used only by the person or business entity listed in the application form filed and the permit issued. Said permit shall be only for the location listed in the application form filed and the permit issued. Said permit is not transferable to another applicant, person, business entity or to another location.
(Ord. 19-2015, passed 11-16-2015; Ord. 08-2016, passed 5-16-2016)
(A) All outdoor café encroachments must be within the permitted area as indicated on the application filed and the approved permit issued by the city. The city may require the area to be marked or physically indicated.
(B) All outdoor café encroachments must maintain a minimum 54-inch clear passage way on the public sidewalk for pedestrians and shall not block access to any building, driveway or crosswalk.
(C) Any change in the outdoor café encroachment area or the materials (furniture or fixtures) approved to be within the outdoor café encroachment area must receive written approval from the city.
(D) Outdoor café encroachment areas may be open to patrons of the business from 7:00 a.m. to 12:00 a.m. (midnight) daily.
(E) All outdoor café encroachment areas must maintain a minimum five-foot unobstructed clearance from a fire hydrant.
(F) All outdoor café encroachment areas must be kept sanitary, neat and clean at all times. The area shall be free from accumulation of food, litter and other potentially dangerous and unsanitary matter. Table tops must be so designed and of such material and workmanship as to be smooth, non-porous, easily cleanable and durable and shall be in a good condition to be readily maintained in a clean and sanitary condition.
(G) No loudspeakers shall be allowed within the outdoor café encroachment area.
(H) Smoking shall be prohibited in any outdoor café encroachment area.
(I) All improvements (furniture and other fixtures) used in the outdoor café encroachment area must be readily removable without damage to the surface of the public right-of-way and there shall be no penetration of the public sidewalk surface.
(J) The outdoor café encroachment area must be accessible to persons with disabilities.
(K) Heating is permitted in outdoor café encroachment areas, as long as the heaters are portable and can be removed. The heating unit must be approved by the Fire Chief or his or her designee and the City’s Electrical Inspector.
(L) The permitted use of the outdoor café encroachment area may be temporarily suspended by the city when street, sidewalk or utility repairs are necessary.
(Ord. 19-2015, passed 11-16-2015; Ord. 18-2023, passed 8-21-2023)
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